COURT: The defendant pleaded guilty in the Magistrates’ Court to three counts of trafficking in dangerous drugs. He was committed for sentence on 9 November 2023 and today confirms his plea as well as his agreement to the Summary of Facts.
The defendant pleaded guilty to trafficking in 859 grammes of ketamine in Charge 1, 80.4 grammes of ketamine and 72.98 grammes of cocaine in Charge 2, and 31.8 grammes of ketamine and 5.2 grammes of cocaine in Charge 3. The total amount of drugs involved was 78.26 grammes of cocaine, 971.2 grammes of ketamine. All three offences were committed on the same day.
The Facts
On 19 June 2021, the defendant was arrested as he entered the building of his residence as a result of an anti-narcotics operation. He was the sole tenant of Flat H, 35th Floor, Royal Green Tower 1, Sheung Shui, New Territories. He was intercepted and keys were found to those premises as well as a car key.
He was taken to those premises and the drugs of Charge 1 were found on a table in the dining room in a bag with two electronic scales. The drugs of Charge 2 were found in three plastic bags inside a box on a desk in a bedroom. Customs and Excise officers also found more electronic scales, scissors and plastic bags of different sizes in the bedroom. In the defendant’s shoulder bag, three mobile phones and $20,580 in cash was found and seized.
The defendant’s car was parked nearby and the vehicle was subsequently searched. Customs officers found the drugs of Charge 3 inside various plastic bags inside the vehicle.
The estimated street value of all the drugs at the material time was $744,211.
Mitigation
The defendant is single and now 26 years old. He was born in mainland China and came to Hong Kong when he was 3 years old. His parents divorced when he was young and he has no contact with his father. He has one elder brother. He was educated up to Form 3 and when arrested he was working in a garage earning $13,000 a month.
His criminal record shows six previous convictions from five court appearances. Three convictions relate to trafficking in dangerous drugs and two relate to possession of dangerous drugs. He was first convicted of trafficking dangerous drugs in July 2013. He was convicted again of two counts of trafficking in dangerous drugs in 2015 and sentenced to 6 years and 9 months’ imprisonment. He was last convicted of possession of dangerous drugs in September 2020 and I have been told he was released from prison in November 2020, having served an 8-month term of imprisonment. For these offences in this case, he was arrested about seven months later.
Mr Wong has said all he can say on behalf of the defendant in written mitigation submitted in advance. The defendant’s best mitigation is his plea of guilty at the earliest opportunity.
Sentencing
It is well established that trafficking in a dangerous drug is a very serious offence. I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, a number of steps have been identified which the court should take such as assessing the gravity of the offence and the applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and lastly passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug or in this case drugs found. Here, there are two types of dangerous drugs. The government chemist has found cocaine and ketamine in the exhibits seized.
I will add the drugs of all three charges together as all were committed on the same day and closely connected. I will consider a global starting point.
The tariff for the drug cocaine follows the tariff for trafficking in heroin, AG v Pedro Nel Rojas [1994] 1 HKC 342. For the present purposes, the tariffs for trafficking in between 50 to 200 grammes of cocaine would attract a sentence of between 8 to 12 years’ imprisonment after trial. Here, 78.26 grammes of cocaine would by itself attract a starting point mathematically of 8 years and 9 months’ imprisonment.
The tariff for the drug ketamine is set out in the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In that case, it was held that the sentence for trafficking between 600 to 1,000 grammes is 12 to 14 years’ imprisonment after trial. Here, 971.2 grammes of ketamine would by itself attract a starting point mathematically of 13 years and 10 months’ imprisonment.
Mr Wong for the defendant has suggested and I agree that in light of the two types of drugs seized, a combined approach in calculating a starting point should be adopted. The combined approach means looking at the overall quantity of drugs rather than the individual portions. A combined approach would usually be correct, preferred and produces the more realistic and fair sentence.
The applicable sentence for the more or most serious drug is taken and then adjusted upwards to take into account significant quantities of the less serious or smaller amounts of other drugs. Normally, the more or most serious drug is not a reference to the quantity but the potency of the drug. This however does depend on the specific facts of each case.
I have been urged to adopt the approach of the conversion rate whereby I will take a single tariff for one of the types of drugs and here it will be ketamine as its quantity is significantly more than the cocaine seized.
Therefore I convert the 78.26 grammes of cocaine to ketamine, which would be the equivalent of 279.47 grammes. When I add this to the base quantity of 971.2 grammes of ketamine, the total becomes 1,250.67 grammes. This quantity of ketamine, 1,250.67 grammes, warrants a starting point of 15 years’ imprisonment according to the guidelines. That is a guideline from Hii Siew Cheng where the Court of Appeal held that the sentence for trafficking between 1,000 to 2,000 grammes of ketamine will be 14 to 18 years’ imprisonment. Mathematically speaking, 1,250.67 grammes will attract a starting point of 15 years’ imprisonment.
I have considered the three means of cross-checking whether the sentence would be manifestly excessive in taking this approach. I have checked it against what is described as the absurdity test, the conversion test and the ratio test. I find the conversion of cocaine to ketamine and the mathematical starting point to be appropriate.
The second step of the six steps set out in Herry Jane Yusuph is to assess the defendant’s role and culpability based upon the evidence. The drugs were all found in his residence and vehicle.
I have assessed the defendant’s role to be equivalent of a storekeeper and courier. Therefore taking into account the third step, his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved. Accordingly, the appropriate starting point will be 15 years’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I do not find any mitigating factors other than his plea of guilty at the earliest opportunity. However, I do find his previous convictions for trafficking in dangerous drugs an aggravating factor. It would appear from the first conviction at the age of 15 to his arrest for these offences here, the defendant has been more or less fully engaged in either trafficking or possession of dangerous drugs. Almost all his convictions relate to dangerous drugs but most relevant today is his three previous convictions for trafficking in dangerous drugs.
I have taken into account the recent authority of Lee Ming Ho and the Court of Appeal’s view that previous convictions for trafficking in dangerous drugs is a separate and additional aggravating feature, rather than a matter going to the assessment of the defendant’s role and culpability.
Notwithstanding Mr Wong’s eloquent submissions in mitigation I find it appropriate to enhance that starting point of 15 years by 6 months to take into account this aggravating factor.
The defendant did plead guilty at the earliest opportunity and is therefore entitled to a full one-third discount. Therefore the starting point of 15 years and 6 months is reduced to 10 years and 4 months’ imprisonment after that discount is applied.
The last step to take is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of not only the offences but also the defendant. It is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Accordingly, for Charges 1, 2 and 3, the defendant is sentenced to 10 years and 4 months’ imprisonment for each charge. The sentences for all three charges will be served concurrently. The defendant is sentenced to a total of 10 years and 4 months’ imprisonment.